The opinion of the court was delivered by: Herndon, District Judge
Petitioner appeals the dismissal of his habeas corpus action, and he now asks this Court to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c), which provides in pertinent part:
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from -
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
As basis for this motion, Petitioner argues that the Court ignored his argument that his sentence is invalidated by People v. Swift, 202 Ill.2d 378 (2002). However, the Court did not overlook that argument. Rather, the Court observed that "Petitioner's reliance upon People v. Swift, 202 Ill.2d 378, 781 N.E.2d 292 (2002) is misplaced, as that case was decided as part of Swift's direct appeal from his conviction, rather than on collateral review." (See Memorandum and Order, Doc. 8 at n. 1). Further, Swift was decided a year prior to People v. De La Paz, 204 Ill. 2d 426, 439, 791 N.E.2d 489, 497 (2003), in which the Illinois Supreme Court held that Apprendi v. New Jersey, 530 U.S. 466 (2000), does not apply retroactively to criminal cases in which direct appeals were exhausted before Apprendi was decided.
Accordingly, Petitioner has not made a substantial showing of the denial of a constitutional right, and his motion for issuance of a certificate of appealability is DENIED.
David R. Herndon DISTRICT JUDGE
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